Specifically instructed: Don’t be a tool?

As a young lawyer, in the seventies office block that housed Sheffield’s County Court, I remember a small epiphany.  It involved discovering the import of the phrase, “I am specifically instructed.” I was only just out of law school, a wet behind the ears trainee, and I recall a small thrill as I picked up the legal equivalent of a masonic handshake.  It was the language of the insider, dissembling to keep outsiders at bay. I enjoyed the excited vanity of a neophyte lawyer entering the club, and a little sliver of discomfort as my law school clinic training urged me to reflect critically on the received wisdom.

For those not yet initiated, to say one is specifically instructed is to say to the judge, My client has been told what I have to say has no merit but I am asked to say it anyway or to similarly say I think my client is wrong.  The client might be bonkers or malicious or misguided and without a nod or a wink, but with two words, an advocate has engaged in a kind of phoney advocacy.  The client has the feeling of their point being made. The judge has the signal that the lawyer is not really making the point. A little bit of gristle is implanted in the sausage of justice.   Perhaps the client’s interests are compromised, but probably they are not.  The feeling of justice being done is maintained and the lawyers and judge do not have to waste too much time on weak or extraneous arguments. There are times when it is a convenient subterfuge, and times where it may be more insidious.

Now, every time I hear the phrase specifically instructed I cast back to that moment. The silly pride has dissipated, a bit, but the discomfort has not. So it was with interest that I read about the lawyer for the killer of a Glasgow shop owner (Mr Asad Shah) who indicated he was specifically instructed to read out a statement on behalf of his client.  According to the Guardian the statement began:

My client Mr Tanveer Ahmed has specifically instructed me that today, 6 April 2016, to issue this statement to the press, the statement is in the words of my client.

I don’t think it is necessary to discuss the statement in detail. As I read it, it says Mr Ahmed believes it was necessary to kill Mr Shah because Mr Shah claimed to be a prophet. This is a different explanation for the killing than had been reported in the press. Different, if not more comforting – at least to me.  What I do want to draw attention to is that the lawyer, Mr Rafferty, indicated both that the statement was the client’s own words and that he was specifically instructed to issue the statement in full.  Assuming he chose his words carefully, it is as if he is saying, to those in the know – I have told my client not to say this but he insists, so what can I do?

I wondered, momentarily, whether Mr Ahmed understands that Mr Rafferty has sought to distance himself from his client in this way (assuming I am correct about the intention behind his words), but I am not really concerned about that here.  What really interests me is whether Mr Rafferty had to, or ought to, have issued the statement and done so with the words ‘specifically instructed’.

The Scottish rules on public statements by lawyers about court proceedings concentrate on the lawyer making clear that opinions of the client are clearly described as opinions of the client and that such statements are in the client’s interests. I am grateful for Jonathan Mitchell QC pointing me towards the Anwar decision:

If [the client’s lawyer is] of the view that it is in their client’s best interests to make public comments on court decisions in proceedings in which they have been involved, about which we ourselves say nothing, we consider that their duty to the court requires them, in doing so, to display the highest professional standards. In particular, we consider that they have a duty to ensure, first, that their public utterances, whether critical or not, are based upon an accurate appreciation of the facts of those proceedings and, second, that their comments are not misleading. Regrettably, we do not think that those standards were met in this case. If any such comments are intended to represent nothing more than the client’s own views or reactions, whether right or wrong, justified or not – and a certain degree of latitude would ordinarily be extended to such views or reactions – that can and should be made absolutely clear.

We see here the need to be clear that the client’s opinion or view is being offered not the lawyer.  That risk is dealt with in Mr Rafferty’s statement by saying it is the client’s words and it is not edited. We can see also that the Anwar decision indicates, as do Scottish Law Society rules,  that the lawyer needs to form a prior view that such a statement is in the client’s best interests before they make it.  If I am interpreting his words fairly, by saying I am specifically instructed, Mr Rafferty appears to be indicating either that he does not believe it to be in the client’s interests to make the statement (in which case why make it?) or he does believe it to be in the client’s best interests but is undermining it’s impact with in-the-know legal audiences by saying he has advised his client against it (or something similar).  Neither position seems to me to be a strongly defensible one – but I may be missing alternative explanations.

It raises a bigger issue.  Is it the lawyer’s proper role to make legally irrelevant or legally damaging points for their client in public? One can imagine situations where it may be important to win a public relations battle as part of the conduct of the case (the cases of Katherine Gun or Clive Ponting come to mind) but that needs to be carefully balanced with one’s obligations to behave independently and (in the lexicon of the Scottish Code) honourably. Put more bluntly, one has to be on guard against being the client’ publicity tool if this conflicts with one’s role as legal representative.

Similarly, I am not at all sure one can perform either function properly whilst hiding behind the words: I am specifically instructed.  Either he has decide the statement is in his client’s interests (in which case the words are unnecessary and potentially misleading) or he has decided the statement is not in his client’s interest: in which case he should not make it.  There is a third possibility, that it is in his client’s interests to make the statement, but also in his client’s interest that he distances himself from it.  My mind begins to boggle a bit at that point.

I must make room for cock up rather than conspiracy in my analysis: perhaps he did not think about what he really meant when he said he was specifically instructed, or mispoke in the heat of the moment, but if he is trying to convey the sense that he had no choice but to issue the statement he may be misleading himself or some of his audience.  This would be most likely if the position is as in English law, and the text from Anwar and the Law Society rules suggest the position is probably the same, the lawyer does have to reach a positive view such a statement in public is in the client’s interest, it is almost never enough for a lawyer to be ‘specifically instructed’ by their client to do something. The lawyer has to decide to do it in their client’s best interests and with a careful eye on their broader duties.

 

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About Richard Moorhead

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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8 Responses to Specifically instructed: Don’t be a tool?

  1. SM says:

    I entirely agree with the main thesis – most usually encountered on “I’m instructed to make this bail application”, which is either utterly otiose (the only other position being you are making a bail application which you are not instructed to make in which case you are incompetent), or a way of copping out, in which case you aren’t actually doing the job for which the public or your client is paying you and you ought not to be paid.

    As I said to you on Twitter, I also take the view that telling the Court your client’s instructions is a waiver of privilege which potentially gets you into a lot of trouble.

    But here, I can see a mad client saying “say this or I’ll sack you”. That is fully consistent with the status of self-proclaimed prophet. In my view Mr Rafferty is entitled to take the view that it is better for his client to have a lawyer than not have one. Given that any lawyer who doesn’t issue this statement may be sacked, he could justify it on those grounds. Equally, making it clear that the client is saying this means that any insanity issue is preserved for a legal defence.

    I’m not saying he has done this. Merely that it is within the bounds of realism to think he has.

    • Richard Moorhead says:

      Very interesting. Thank you Simon.

      If you are right about the sacking point, I’d have to think about it a bit, I think it depends a bit on the urgency of the risk of not being represented. In the instant case the client looks like he has time to find another lawyer should he sack his first one (although legal aid rules may very well complicate this judgment).

  2. nicholas ostrowski says:

    Very interesting indeed. The issue of code words used by counsel to advance bad points was dealt with (and thoroughly discouraged) in Richard Buxton v Hew Llewellyn, Paul Mills [2010] EWCA Civ 122 where at para 44-45 Dyson LJ says:

    ’44. Our attention was drawn to page 6 of Cook on Costs [2010] where there is a reference to the decision of Mackay J in the present case. The author says:

    “If a client is prepared for a case to be advanced and wants the claim advanced on a particular basis which did not involve impropriety on the part of the solicitor or counsel, then it is no answer for the solicitor to say that he believes it is bound to fail and therefore he will not do it. Whatever one thought about the client’s stance, his instructions were firm and unequivocal as to how the case was to be presented and the solicitor ought to have followed them. The situation fell short of the line where the solicitor would have been entitled to terminate the retainer and the solicitors were not entitled for any fees for the work they had done. I suggest the solicitor should have continued to act and adopted the traditional coded message to the court used in these circumstances: ‘I am instructed to say’.”

    45. For reasons that I am about to give, I consider that the appellants were entitled to terminate the retainer in this case. But I refer to this passage in Cook because I do not agree with the last sentence. In my judgment, if an advocate considers that a point is properly arguable, he should argue it without reservation. If he does not consider it to be properly arguable, he should refuse to argue it. He should not advance a submission but signal to the judge that he thinks that it is weak or hopeless by using the coded language “I am instructed that”. Such coded language is well understood as conveying that the advocate expects it to be rejected. In my judgment, such language should be avoided.’

    http://www.richardbuxton.co.uk/transcripts/richard-buxton-solicitors-v-hew-llewelyn-paul-mills-owens-law-society-intervening

  3. Margo says:

    Very interesting, thank you
    (By the way, I think you have had a moment of confusion with the names – you say “I don’t think it is necessary to discuss the statement in detail. As I read it, it says Mr Ahmed believes it was necessary to kill Mr Ahmed because Mr Ahmed claimed to be a prophet.” Should this be “Mr Ahmed believes it was necessary to kill Mr Shah because Mr Shah claimed to be a prophet”?

  4. PP says:

    Two issues: is there potentially a concern about the law on hate speech. If I stand up in a public space, albeit speaking for my client, and simply say, “X deserved to die because their religious beliefs are such that all people who are of that religion should be killed,” is there not a danger that the words will be seen as representing my beliefs, potentially opening up culpability? Hence the lawyer is extremely careful to emphasise that the words he is speaking, he speaks on behalf of his client, who wishes his actions to be explained.

    Secondly, the lawyer wants it to be made clear that he does not consider that giving this account prior to trial is in his client’s best interests. He is not therefore using the old tag “I am instructed …” as a way of indicating his acceptance that his legal argument has no merit; he is using it to explain why he is making a statement when it does not appear to be in his client’s interests to make any statement.

    I’m not wholly convinced by either point – but that was my reaction on reading the comments.

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